Scotland and the EU: Comment by PIET EECKHOUT

It has been a great pleasure to read Sionaidh Douglas-Scott’s marvellous analysis of why the EU should welcome an independent Scotland. I have to admit that I agree with about everything that she says, which for purposes of this symposium is not the most exciting starting-point. But overall there is disagreement of course, including with such luminaries as Commission President Barroso and Professors Crawford and Boyle. My comments here focus on three points – constitutional, doctrinal, and practical.

This symposium is, appropriately, posted on Verfassungsblog. As Sionaidh rightly points out, the question of an independent Scotland’s relationship with the EU must surely be approached from an EU law perspective. This does not exclude the relevance of public international law. The EU respects international law, and the founding Treaties are international legal acts. What this means, in a nutshell, is that both EU law and international law must be complied with. But international law is flexible as regards questions of State succession, and the primary focus should be on what EU law has to say on the matter. Now, whatever the merits of this 50 years old legal evolution, EU law clearly conceives of itself as a form of constitutional law, grafted upon its international law foundations. It is a sui generis type of constitutional law, which as Sionaidh emphasizes does not just revolve around traditional State sovereignty, but includes the direct conferral of individual rights. Her analysis is excellent, but can be taken even further. In Van Gend en Loos the Court of Justice not only established that the EU Treaties confer rights on individuals; it established that the subjects of this new legal order comprise not only Member States but also their nationals. EU citizens have equal “ownership” of this constitutional order as the Member States ...